Baroness Walmsley
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Policing and Crime Bill
Baroness Walmsley ExcerptsWednesday 2nd November 2016
(7 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
Baroness Walmsley
“(6) Subject to section 136A, in this section “place of safety” means residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948, a hospital as defined by this Act, an independent hospital or care home for mentally disordered persons or any other suitable place.””
Baroness Walmsley (LD)
My Lords, I shall speak also to Amendments 190 and 191, which are grouped with Amendment 189. We now come to the part of the Bill that deals with the Mental Health Act 1983. Amendment 189 would ensure that no one, regardless of their age, was taken to a police cell under an emergency section of the Mental Health Act. Amendment 190 defines a place of safety, and that does not include a police cell.
The Bill makes some very welcome changes to provisions under the Mental Health Act. It bans the use of police cells for children and young people in crisis; it seeks to reduce the use of police cells as places of safety for adults; and it reduces the length of time that a person can be detained from 72 to 24 hours. These are big, important and very welcome improvements. However, the Bill leaves the door open for police cells to continue to be used for adults in crisis. That should not be continued, and it does not need to happen. We have seen in places such as Hertfordshire and Merseyside, where no police cells have been used for people in crisis in the last year, that with careful planning and co-operation it is entirely possible for people to be supported in health-based places of safety instead of being taken to police cells. I commend the large reduction in the use of police cells that many other police forces have made over the last year across England and Wales.
The limited change to the use of police cells in the Bill is based on an assumption that 4% of people detained under Section 136 need to be taken to a police cell due to “exceptional circumstances”. However, these circumstances have not been defined. Clearly, we need further information on the exact situations in which the Government envisage a police cell being an appropriate place for someone in crisis. I do not believe that anyone in crisis should be taken to a cell. That is not a place of safety for someone in crisis. When someone has a mental illness, everything that a public authority does to and for them should help them recover. Putting them in a cell does not achieve this. Indeed, it often achieves the exact opposite. One patient told the charity Mind that, “Being put in a police cell where hardly anyone is trained in mental health issues is not good. To be locked up and isolated made me think I was worthless. All I wanted was to talk”.
Baroness Walmsley
My Lords, I thank the Minister for her reply. I have a few points to make in response but want first to apologise to the noble Lord, Lord Bradley, for not mentioning his excellent report. I congratulate him and the Government on the recommendations in the report that have been achieved on the ground. The street diversion teams are particularly good and would certainly come into play were a person found to be violent and in danger of hurting themselves or somebody else. The teams have had a fantastic effect and I look forward to their being rolled out universally.
It has been suggested that the amendment is a little premature and that we do not yet have the infrastructure in place to enable us to have a complete ban on the use of police cells. As with every other Bill, it would be perfectly possible for the Government to accept such a measure and then delay its implementation until such time as the review suggested by the noble Lord, Lord Bradley, had taken place and the extra beds had been put in place. That would not be an impediment to the Government accepting my amendment.
The noble Lord, Lord Rosser, asked what would happen if no health-based place of safety was available, the implication being that only use of a police cell was possible. Every local authority has hundreds of care homes and the lucky ones have nursing homes, too. Not all beds are occupied all the time; indeed, a recent report in the media cited instances where the contract with the family concerned stated that after the person in question had died, the family would have to carry on paying for two, three or four weeks while the home found another occupant for that room. That means that vacant rooms will be available. Some of them would be perfectly suitable for some patients, because they are acceptable and legal places of safety. If Hertfordshire and Merseyside can do it in those circumstances, then why not everywhere else?
Baroness Chisholm of Owlpen
Is the noble Baroness suggesting that mental health patients are able to go to care homes as places of safety?
Baroness Walmsley
I beg the Minister’s pardon. I should have said that there are care homes in every local authority where staff are specially trained to deal with people with mental health problems.
If Merseyside and Hertfordshire can do it, why not everywhere? Do they not have any patients who are in exceptional circumstances? I am sure they do.
On funding, the Minister suggested that the LGA was incorrect in briefing us that none of the money was going to local authorities. That is where my statement came from, and it should know.
On Amendment 191, about use of the home, it is important that somebody in a mental health crisis be able to see someone who is trained to assess and treat them as soon as possible, and as soon as would happen if they had a physical problem. They will not get that in their home. I do not believe that those choosing to take them home would be in a position to assess whether that home was really safe. Even members of the family would not know whether the home was safe, so getting their agreement is no guarantee that the home is a real place of safety. Many mental health patients have said that they would find it a serious intrusion on their privacy if the police brought them home and stood guard over them while they were there. I accept that it would be for only a short period, but to have a policeman outside the door would have a great effect on how they felt they were seen. As the noble Lord, Lord Thurlow, said, they already feel stigmatised by a link being made between mental health and criminality, which there really is not. We should therefore pursue these issues on Report. Of course, this is Committee stage, so for the moment I beg leave to withdraw the amendment.
Baroness Walmsley
Baroness Walmsley
My Lords, the amendment would ensure that people are really only detained under the Mental Health Act for up to 24 hours. To achieve that, the clock needs to start when the decision is made to detain someone and not when they arrive at the place of safety. If the Government want people to be detained only for up to 24 hours, Amendment 192 is needed. This is the only way to ensure that we are not detaining people for longer than 24 hours during what is often a distressing and alienating experience for people in crisis. They may be detained on the street in one of the special vehicles that have been mentioned or in another public place. They may be kept in a police car until a suitable destination is found. Wherever it is, distress will ensue for the person concerned.
We need to look at the position in parallel with that of a person with a physical illness who calls an ambulance. When ambulance services are assessed, the clock starts ticking from the moment the ambulance is called and not from the moment the patient is picked up. This is a matter of parity between physical and mental health.
When discussing these parts of the Bill, it is crucial that we remember that people detained under the Mental Health Act have not committed any crime. They are unwell and require health support. That is why I beg to move.
Baroness Hamwee
My Lords, I support the amendment. From the point of view of the person detained the detention starts at the point described by my noble friend Lady Walmsley. It is not a question of that being some sort of limbo; that must be how it feels. If a person is on the way to a place of safety, they are being detained, held and controlled as much as they would be when they reached their destination.
Baroness Walmsley
My Lords, I thank the Minister for her reply. Obviously, I will consider what she has said very carefully in case there are any unintended consequences, but I confess that up to this point I am not quite convinced. Once a person has been taken into custody they are under the control of the police, their liberty has been taken from them, and I cannot imagine anywhere in this country that you could not get to within 24 hours. Because we are in Committee I will certainly withdraw my amendment and I will think carefully about whether we need to ask for further consideration of this on Report. For the moment, I beg leave to withdraw the amendment.
Baroness Walmsley
“Detention under the Mental Health Act 1983: access to an appropriate adult
(1) A person detained in a place of safety under section 135 or 136 of the Mental Health Act 1983 shall have the right to have access to an appropriate adult.(2) For the purposes of subsection (1), “appropriate adult” means—(a) a relative, guardian or other person responsible for the detained person’s care;(b) someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police; or(c) some other responsible adult aged 18 or over who is not a police officer or employed by the police.”
Baroness Walmsley
Amendment 193 would ensure that people detained under Section 135 or Section 136 of the Mental Health Act 1983 have access to an appropriate adult. Such access is key to providing people in crisis access to advice while under emergency detention. It is a uniquely distressing and confusing time, as we have heard, and one where independent advice from someone with knowledge and skill who can handle the situation calmly is crucial.
At the moment detained people only have the police, who were involved in detaining them, and the person doing their mental health assessment as their key contacts. Clearly, neither of these can be seen as impartial to their situation. The person doing their assessment, although qualified, is going to be deciding what happens to them next, and so cannot really be described as impartial. There is a huge gap here, since people under most other sections of the Mental Health Act have the right to access an independent mental health advocate. People who are under arrest also have the right to access an appropriate adult. The National Appropriate Adult Network says about people detained or questioned by police:
“While both children and mentally vulnerable adults are required to have an Appropriate Adult under the PACE Codes of Practice, there is only statutory provision for children. As a result many people aged over 17 who are mentally vulnerable do not get the support that they are entitled to. This includes people with mental ill health, learning disabilities and autistic spectrum disorders”.
I recognise the concern of local authorities that they are strapped for cash, but I feel that making this provision statutory will put pressure on the Government to provide the necessary resources. The JCHR shares my concerns about this gap, as we read in its third report of the 2016-17 Session. It wrote to Mike Penning MP, then Minister for Policing and Criminal Justice. He replied on 1 July 2016 to the effect that persons detained under Sections 135 and 136 were only there in order to allow for a mental health assessment and he was keen,
“that we do not inadvertently build unintended and unnecessary delay and bureaucracy into this process or as a consequence of having to await the arrival of a formal advocate or independent representative”.
He also pointed out that the person could request the presence of a legal adviser or a relative or friend. This did not satisfy the JCHR and it does not satisfy me.
The JCHR said:
“We believe that additional safeguards are required to ensure that a person detained in a place of safety under s 135 or 136 of the Mental Health Act 1983 should have access to an ‘appropriate adult’, particularly in circumstances where they are detained in their own home”.
It drafted an amendment very similar to my Amendment 193, which I think it proposes to bring forward on Report, unless the noble Baroness can satisfy us all this evening. Given the state a person is likely to be in when they are detained, I believe it would be a breach of their human rights not to allow them the right to access an appropriate adult. I beg to move.
Baroness Chisholm of Owlpen
My Lords, it is absolutely right that people detained under Sections 135 or 136 should have the help and support they need to understand what is happening to them, and the current arrangements already allow for that. Detention under Sections 135 and 136 is for a short period of time and for the specific purpose of assessing the need for care and treatment, and making the necessary arrangements for its provision.
This amendment calls for each person detained to have access to an appropriate adult; an issue which was also raised by the Joint Committee on Human Rights in its report on the Bill. It is true that appropriate adults provide an incredibly valuable service, providing support and advocacy for children and vulnerable adults detained in police stations, usually when they are under arrest in connection with a criminal offence. Appropriate adults are not currently required to be provided by the police to support people detained under the Mental Health Act, nor are they trained to meet their particular needs. We must be cautious of the potentially stigmatising effects of conflating the support services provided to people suspected of an offence with those needed by people detained in connection with their mental ill health.
In the majority of cases under Sections 135 or 136, the person will be taken to health-based places of safety, where appropriate adults do not operate, rather than to police stations. In 2015-16 police stations were used in only 7% of Section 136 cases in England and Wales. The provisions in the Bill mean that police stations will be used even less than they are now; in fact, quite rarely, I expect— we hope, not at all. These rare cases require particular attention and I expect that the regulations on the use of police stations as places of safety for adults will give very clear direction about the level of support that will need to be in place.
I recognise that this amendment is about all people who are detained under Sections 135 or 136, regardless of which place of safety they are taken to. It is about supporting them, informing them and speaking for them if necessary. The Government are clear that the mental health professionals involved in the detention and assessment process are best placed to do this. Also, mandating the attendance of an appropriate adult, or some other person with a similar role, could very easily cause avoidable delays in getting on with the mental health assessment that is the proper purpose of a detention under Sections 135 or 136. Given that the Bill reduces the maximum period of detention from 72 hours to 24, it seems unhelpful to then introduce additional requirements that would, in all likelihood, impinge on that reduced period of time.
Guidance is now being developed on the changes the Bill makes to the 1983 Act. It will make clear the expectations on healthcare staff—those whom people detained under Sections 135 and 136 will encounter—to ensure that detainees have the support and advice they need while awaiting and undergoing an assessment. The Government are engaging with a wide range of experts to draw up this guidance. Current practices and the needs of people experiencing a mental health crisis will be carefully considered.
I hope I have been able to persuade the noble Baroness that mandating access to an appropriate adult is inappropriate in the context of a short Section 135 or Section 136 detention, and that, having had this opportunity to debate the issue, she will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I am a member of the Joint Committee on Human Rights and my name is on the amendment. I will make two points. First, the Government’s argument is that using the term “appropriate adult” causes some sort of stigma. I cannot speak for the committee or my noble friend whose amendment it is, but you can call that person what you like—it is the job that needs to be done, and that is what the amendment is driving at. Secondly, I wish to draw attention to the provision of subsection (1) of the proposed new clause, which is,
“the right to have access”.
Rights should be in legislation.
Baroness Walmsley
I agree with my noble friend on that point and on all the points she made. I thank the Minister for her comments, which I will of course consider between now and Report. I do not agree with her that the person formally doing the mental health assessment can be regarded as the appropriate adult, for the reason that I gave in my opening remarks; that is, that person is in control of what happens next to the person being assessed. It is important that the person has a right—they may not choose to use it—to consult somebody else about whether that is the right thing for them and how they feel about it.
Of course, the Minister is right that the number of people detained in police stations in these circumstances is going down very rapidly. If my Amendment 189 was accepted, it would become zero very quickly. In those few cases—many fewer now—where a person is in that situation, I still think that they should have a right to choose if they feel the need to have somebody else there to advise them. However, this is Committee so I will withdraw the amendment.
Baroness Walmsley
“Disallowing use of Tasers by police officers on psychiatric wards
A police officer may not use a Taser or electroshock weapon during a deployment on a psychiatric ward.”
Baroness Walmsley
My Lords, Amendment 194 would ban the use of Tasers in psychiatric wards. It must be remembered that a Taser is a firearm and when they were first introduced they were restricted for use by trained firearms officers only. How could it possibly be justified to use a firearm on a person going through a mental health crisis and whose liberty has been removed, especially when you do so in a health-based setting where staff are supposed to be trained in the behaviour management of people suffering a mental health crisis? Could it be that the increased use of Tasers in these settings is an indicator of the shortage of properly trained staff in them?
A Guardian freedom of information request on the police response to calls for help from staff at psychiatric units spotlighted the pressures on an overburdened system. The staggering 617 emergency 999 calls by one London trust in the past 12 months indicate a service in crisis. What we are seeing is the health service relying on a forensic solution to meet clinical need, because we have lost more than 4,000 mental health nurses in recent years. This is a health issue as well as a Home Office issue.
It is also a human rights issue. The United Nations Committee Against Torture has stated that Taser X26 weapons provoke extreme pain, constitute a form of torture and in certain cases can also cause death, as shown by several reliable studies and certain cases that have happened after their use. While termed non-lethal, there have been at least 10 known deaths associated with the use of Tasers in the past 10 years, yet Tasers have been used against patients detained in secure psychiatric settings over that same period. But this scandal has come to public attention only recently, due probably to the imbalance of power between those who use them and those upon whom they are used. I would like to know why the CQC and/or the IPCC have not reported on this before.
Baroness Williams of Trafford
I start by thanking all noble Lords who have taken part in this debate. Although there have been opposing views on the amendment, it has provided a very balanced set of points. This group of amendments includes two proposed new clauses about police use of Tasers. As the noble Baroness, Lady Walmsley, explained, her amendment seeks to bar the use by police officers of a Taser or other electroshock device in psychiatric wards.
Any use of force by police officers in psychiatric wards, or in any other setting, must be appropriate and proportionate—the noble Lords, Lord Harris and Lord Dear, the noble Viscount, Lord Hailsham, and my noble friend Lord Attlee made that point and gave some very good examples this evening. The use of force must be necessary and conducted as safely as possible. Therefore, it is right that if police officers need to attend and use force, they should be expected to account for their actions, as the noble Lord, Lord Harris, said.
It remains the Government’s position that the deployment of police officers to mental health settings, and the tactics used, should remain an operational matter for the police force in question. Tasers are an important tactical option for police officers. Unfortunately, some of the most extreme behaviour can occur in mental health settings and can escalate to the point where it can be met only with force—as dictated by the high degree of urgency and grave threat to staff and other patients. I am talking about cases where other de-escalation tactics have probably been tried and have failed. Again, the noble Lords, Lord Harris and Lord Dear, and the noble Viscount, Lord Hailsham, made those points.
A blanket ban on the use of Tasers on psychiatric wards, as proposed by this amendment, would remove this valuable police tactic and therefore potentially reduce the safety of officers, hospital staff and indeed patients. In some extreme cases, it could leave officers with no choice but to use another, potentially more dangerous option as the only means to resolve a violent situation and keep others safe. The same noble Lords made these points. Police officers themselves have made it clear that they would not want their options constrained by a blanket ban on Tasers. Officers have a range of tactics and equipment available, and a Taser is but one of them. In deciding which tactic to use, an officer will assess which is likely to be most effective and proportionate.
The Government accept that more can and should be done to ensure that all uses of force, including of Tasers, are necessary and proportionate. For this reason, the former Home Secretary asked former chief constable David Shaw to lead an in-depth review of the publication of use-of-force data, including data on where force is being used, such as in a hospital setting, to ensure that the use of these sensitive powers is transparent. With the agreement of fellow chief officers, Chief Constable Shaw recommended that every time the police use a significant level of force on an individual, such as the use of Tasers, a range of core data must be recorded. This includes ethnicity, age and location, so that we will be able to identify every time force is used in a hospital or mental health setting. The data will enable thorough scrutiny of proportionality and effectiveness.
That brings in the point that I think the noble Lord, Lord Rosser, made about force seeming to be used more in some places than in others. All forces have worked to implement this new recording system, and I anticipate that the collected data will form part of the 2017-18 Home Office annual data return. I can tell noble Lords that in 2015 there were 10,329 uses of Tasers by police. Actual firings of the device—this is an important point—accounted for 17%. Non-discharges —where the Taser is drawn, aimed, arced or red-dotted—accounted for 81% of Taser use. Red-dotting accounted for 51%—the most common use.
All forces have worked to implement this new recording system and, as I said, it should be in force in 2017-18. The Government have also taken further steps to ensure greater scrutiny of the use of Tasers in mental health settings at local level, where operational decisions are made. Charles Walker MP raised some valuable points on this matter during consideration of the Bill in the House of Commons.
Both Home Office and Department of Health Ministers have in the past few days written to police and crime commissioners, chief constables and the chairs of local mental health crisis care concordat partnerships to ask them to work together to ensure that sufficient local joint scrutiny arrangements are in place. As local leaders with overall responsibility for policing and mental health crisis care, they have been tasked with ensuring that mechanisms are in place in their areas for the joint identification and scrutiny of any use of Tasers in a mental health setting.
I expect this additional scrutiny to lead to all relevant policing and health partners working closely to look at the full circumstances surrounding police officers being called to attend, the specific circumstances of any use of Tasers, and the lessons they can learn for the future.
As I have said, the Government and police believe that a blanket ban on the use of Tasers in psychiatric settings risks the safety of the police, hospital staff and patients. That said, I agree that more should be done to ensure that any use of Tasers in such circumstances is open to effective scrutiny. That is an important point.
The amendment tabled by the noble Lord, Lord Rosser, goes rather wider in seeking a review of all police use of Tasers—not just in mental health settings. As I just explained, the Government are committed to ensuring that the police use their powers and tools proportionately and are keen that all use of force by the police—including Tasers—be recorded and published.
The benefits of the planned new data collection system will be to enable the police and others to review practice in certain locations, against certain groups, and so on. This will enable deeper examination of the reasons for the use of force and inform adjustments needed to guidance, policy and authorised professional practice, if any. We have asked the police and others to ensure that this happens and, on that basis, I hope the noble Baroness feels able to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply and the noble Lords, Lord Ouseley and Lord Rosser, and my noble friend Lord Paddick for their support. I am sorry that I have been unable to take the noble Viscount, Lord Hailsham, or the noble Lords, Lord Dear and Lord Harris, along with me. I must say that I felt that in his enthusiasm in making his case, the noble Lord used somewhat unparliamentary language. In 16 years in your Lordships’ House, I have never been called silly before. The amendment was certainly not regarded as silly by the mental health patients who have approached us about the issue.
The noble Baroness mentioned that use should be appropriate, but we have had to move the amendment to highlight the issue today because it seems that “appropriate” has become a lot more frequent. We have heard some figures about the number of times that the police have been called in. At least the noble Lord, Lord Harris, was able at the end of his remarks to agree with me that part of the problem is undoubtedly the lack of sufficient properly trained staff in mental health wards, which needs to be addressed.
We will think carefully about what has been said on all sides of the argument between now and Report, but, for the moment, I beg leave to withdraw the amendment.
Baroness Walmsley
“Child sexual exploitation: duty to refer
(1) Where the police have a reasonable belief that a child has been sexually exploited or subject to other forms of child abuse, the police must refer the child to a named mental health service. (2) The Secretary of State must by regulations define “named mental health service” for the purpose of this section.”
Baroness Walmsley
The amendment is intended to ensure that children who have been abused or sexually exploited are made known to mental health services in their area. It is beyond the scope of the Bill to mandate what happens next, but it is inconceivable that services to which the child is referred should not provide the necessary assessment and therapeutic services.
However, we know that many thousands of children who have been abused sexually and otherwise have not received any help, despite the fact that up to 90% of children who have been sexually abused develop mental health problems before they are 18. Recent NSPCC and Children’s Society research has highlighted that abused children are not routinely getting access to the mental health and therapeutic support they need. They found that traumatic experience of abuse on its own rarely triggers therapeutic support, with abused children reaching high clinical thresholds for services only when they have severe mental health issues and are at crisis point.
Evidence from the Children’s Society report, Access Denied, said that despite abuse being a major risk factor for mental health issues, less than half of mental health trusts identify children who have experienced sexual exploitation in referral and initial assessment forms, and only 11% of trusts fast-track access to CAMHS for this group. Only 14% of local transformation plans for children’s mental health contained an adequate needs assessment for children who have been abused or neglected, and one-third of plans do not mention services to meet the needs of such children at all. Identifying young people who experience sexual exploitation and their needs in the first place can be a particular challenge.
Since I entered your Lordships’ House 16 years ago, I have attended many presentations and seminars, but one sticks in my mind from my very first months here. It was with the NSPCC, highlighting the lack of therapeutic help for abused children. Here we are, 16 years later, talking about the same thing, despite all the efforts of my right honourable friend Norman Lamb MP to get more funding for CAMHS.
This morning, I attended the 30th birthday party of ChildLine, and I was discussing the amendment with Esther Rantzen. She, of course, supports it, but she made another relevant point, which was that although ChildLine often refers children to the police—with their permission—it is rarely the other way round. The point is that if the police are having difficulty getting a child to disclose to them about suspected sexual abuse, they should put them in touch with ChildLine, which will not only help them to disclose safely, in the way they should, but will support them through the proceedings that may follow.
The phone number of ChildLine should be on the wall of every police station: 0800 1111. Perhaps this would also remind police to refer children to their local mental health services for an assessment. They know they should, but they do not always do it. That was admitted this morning on Radio 4’s “Today” programme, when Sarah Champion MP, a great champion for abused children, and a senior police officer, discussed this very thing. Although it was accepted that the police’s attitude to abused children has improved enormously, it was admitted that there is still some way to go.
There is an opportunity through the Bill to pursue the recommendations set out in Future in Mind: that sexually abused or exploited children receive a comprehensive specialist initial assessment and a referral to appropriate services, which can provide evidence-based interventions according to their need. Where victims of child sexual exploitation come into contact with the police or a local authority, the Bill provides an ideal opportunity to state in law that the police must refer them for a psychological assessment, and then we must rely on providers to give them the support they need to recover.
These children are going to cost the NHS a great deal of money unless we act promptly. A report from Public Health Wales this week found that people who have been abused in childhood are three times as likely to contract a serious illness later in life. The Government must see the amendment as prevention of a great deal of expenditure later, and accept it tonight. I call on them to do so and beg to move.
Lord Paddick
My Lords, I rise very briefly to support my noble friend Lady Walmsley’s amendment, to which I have added my name. It seems absolute common sense that, if the police are investigating an allegation that a child has been sexually exploited, the needs of the child should be paramount and that referral to appropriate support for the child should be compulsory in those circumstances. I feel that I really need say no more than that.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Baroness, Lady Walmsley, the noble Lord, Lord Kennedy, and the noble Baroness, Lady Benjamin, for their explanation of the amendments. We appreciate that their intention is to ensure that the proper provision is made for vulnerable or traumatised children. We absolutely agree that we must ensure that such children never fall through the gaps between services, but I put it to the noble Baroness, Lady Walmsley, that the overriding determinant of referral for health services must be clinical need. Not all children and young people who have been abused or exploited will develop a mental health problem, and intervening unnecessarily or inappropriately can in itself be harmful.
All that said, it is essential that healthcare practitioners who work with abused children and young people should have the capacity and capability to provide evidence-based treatment where needed. This will be addressed through the emerging workforce strategy, which is being put in place to deliver the key proposals in the Department of Health report on children’s mental health. The Department of Health is also introducing routine procedures so that sensitive inquiries are made to establish whether a child undergoing a mental health assessment has experienced neglect, violence or abuse. This will be an important step towards establishing a child’s or young person’s need for support. The important thing is that children and young people get the right care at the right time, based on their needs, not on a non-clinician’s view of their potential needs based on their experiences.
On amendment 221, it is worth adding that individuals, including children where appropriate, need to consent to receive treatment. Where a person indicates that they would like to avail themselves of any referral, consent can be sought for relevant personal details to be passed to the health provider, which is the proper course of action. It would be likely to be inappropriate, and in breach of data protection, automatically to pass on personal details and potentially sensitive information, even to a health provider. It may be helpful for noble Lords to know that NHS England published a Commissioning Framework for Adult and Paediatric Sexual Assault Referral Centres (SARC) Services in August 2015, which outlines the core services in SARCs and referral pathways to other services. They are now being rolled out throughout England.
On the basis of my remarks, I hope that the noble Baroness feels content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister, though I hardly know where to start. I know that I want to keep my remarks short, as those here for the dinner-hour debate are waiting.
The Minister suggested that not all young people who have been abused require therapeutic help. Bearing in mind the figures that I gave at the beginning of my speech, we will not really know which 10% will not develop mental health problems unless we get them properly assessed. I may have used the wrong word—“refer”—in my amendment, but the point I am trying to make is that the police must ensure that the appropriate mental health commissioners in the area are made aware that a child may need therapeutic help and that an assessment should be done by a qualified person to find out whether they do. That is absolutely essential.
The fact is, we know that it is not always happening and that is why, as the noble Lord, Lord Harris, accepted, I felt it necessary to raise this, and I am not the only one. As I say, ChildLine also very much feels that this would be helpful.
Given the effect on the rest of the lives of these children, as my noble friend Lady Benjamin mentioned, a little bit of over-referral would not necessarily be a bad thing, because it will soon come out in the wash. If they do not need any help, it will soon be found out and the help will stop if it is not needed. The National Health Service is not going to give a whole lot of help to people who do not need it—it does not have the money. But the fact is that most of them do need it and it is not happening. After 16 years, I cannot believe that we are still here.
I will of course consider what the Minister has said and make further inquiries between now and Report stage in case it is not necessary, although I think it is. For the moment, I beg leave to withdraw the amendment.
Baroness Walmsley
Main Page: Baroness Walmsley (Liberal Democrat - Life peer)Department Debates - View all Baroness Walmsley's debates with the Home Office
Policing and Crime Bill
Baroness Walmsley ExcerptsWednesday 30th November 2016
(7 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-I(Rev)(a) Amendments for Report, supplementary to the revised marshalled list (PDF, 62KB) - (30 Nov 2016)
Baroness Walmsley
“136A Prohibition on using police stations as places of safety(1) A person may not, in the exercise of a power to which this section applies, be removed to, kept at or taken to a police station as a place of safety.(2) The powers to which this section applies are—(a) the power to remove a person to a place of safety under a warrant issued under section 135(1);(b) the power to take a person to a place of safety under section 135(3A);(c) the power to remove a person to, or to keep a person at, a place of safety under section 136(1);(d) the power to take a person to a place of safety under section 136(3).(3) In this section “person” means a person of any age.(4) The Secretary of State may by regulations made by statutory instrument appoint a date on which this section comes into force.(5) In this section “place of safety” means residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948, a hospital as defined by this Act, an independent hospital or care home for mentally disordered persons or any other suitable place.”
Baroness Walmsley
My Lords, we now move to issues relating to the interaction between the police and people with mental health problems. This amendment would ban the use of police cells for adults detained under Sections 135 and 136 of the Mental Health Act 1983 in the same way as this Bill now bans it for children under 18.
I am very encouraged by the 53% reduction in the use of police cells as places of safety during 2015-16. The police, mental health services, local authorities and voluntary sector partners deserve our congratulations on that. However, that still left 2,100 people taken to police cells—a situation that will have led inevitably to exacerbation of their mental health crisis. I listened very carefully to what the Minister said in response to a similar amendment that we discussed in Committee. I thank the Minister for the meeting that we had at the Home Office to discuss it. I am encouraged by the clearly expressed intention of the Government eventually to reduce the use of police cells to zero, and I hope that the Minister will feel able to accept this modified amendment, which takes account of her concerns.
We got rid of discriminatory mental health legislation only a few years ago, and we are on a journey towards parity of esteem between physical and mental health. The Mental Health Act 1983 is now over 30 years old, and we need further to update how we treat people with mental health problems and enshrine that in statute. At least two police forces have now managed to reach the desirable target of zero use, which proves that use of police cells can be avoided even in exceptional circumstances, so we are not asking for something that has been shown to be impossible; we are asking for something that has been shown to be possible. But we appreciate that it requires the provision of more health-based places of safety, more training, better regulation, better partnership working and more diversionary strategies such as street triage.
That is why subsection (4) of the new clause, which my amendment would insert into the Bill, makes provision for delayed implementation until such time as the Secretary of State is convinced that everything is in place to ensure that there is no longer any need to take people in mental health crisis to a police cell for their assessment to be done. I appreciate that this was not strictly necessary, as implementation is dealt with elsewhere in the Bill, but I included it to make clear what I am asking for. I suggest that an implementation date of April 2019 is quite achievable.
When you are in a crisis, you need compassion and understanding and, with the best will in the world, the police are not the people to give that. That is why the police themselves are keen that the objective of my amendment is achieved as soon as possible. A mental health crisis is a mental health car crash. Nobody who broke their leg in a road accident would expect to be taken to a police station for triage; they would be taken to a health-based place of safety for their needs to be assessed and treated—in other words, an A&E department in hospital. We cannot say that we have achieved parity of esteem between physical and mental health if we continue to treat mental health emergencies in a different way from the way we treat physical emergencies. People detained in this way are not criminals and yet they are treated as such and feel distressed and confused, making it even more difficult to help them get well.
Baroness Chisholm of Owlpen
I was pointing that out as just one of the reasons why it might be—but we have to remember that, as we know, mental health is going through a huge change at the moment. As I said in a debate on Monday, I am afraid that we are going from a very low base. We have to be aware that it will take time for these places of safety to be there to ensure that we have an increased number of beds or places of safety for these people to be taken. That is part of the reason for the discrepancy.
To go back to further points raised on mental health, the noble Lord, Lord Rosser, raised an issue related to the respective changes to police powers under Sections 135 and 136 of the Mental Health Act. The noble Lord suggested that the maximum detention period should be reduced further to 12 hours. We are confident that the Bill reduces the maximum detention period by the appropriate amount—from 72 hours to 24 hours. The Government have seen evidence that the average assessment under Section 136 is conducted in under 11 hours. Furthermore, we fully support the target set by the Royal College of Psychiatrists for assessments to commence within three hours. However, there are some cases when it is not possible, due to the condition of the person detained, to conduct a meaningful assessment within 12 hours: for example, if they are intoxicated through alcohol or drugs.
The noble Lord also mentioned duties on police to consult with mental health professionals, with detainees having a right to an independent mental health advocate. The second issue concerned access to independent advice. Clause 78 requires police officers to seek advice from certain specific healthcare professionals, if practical, before making a decision to exercise their powers under Section 136. This is about supporting police officers to make the best possible decisions when they encounter a person who may be experiencing a mental crisis. This provision builds on existing good practice of police forces and local NHS services working together collaboratively, including through street triage schemes. The “if practical to do so” condition will avoid tying the hands of an officer if, in their judgment, they need to use the powers quickly to secure an individual’s safety.
On detainees’ access to advice, for example from a mental health advocate or an appropriate adult, the guidance supporting the implementation of these provisions will set out the expected support to be provided to any person detained at a place of safety under Section 135 or Section 136. Such support can, in our view, most appropriately be provided by health staff already present, rather than another person in a bespoke role, which would introduce delays and jeopardise professionals’ ability to conduct the assessment within 24 hours.
The noble Lord asked whether a person’s detention is disclosable if they subsequently apply for a disclosure and barring service check. In 2015 the Home Office published revised statutory guidance on enhanced DBS checks in relation to Section 135 and Section 136 detentions. The guidance now emphasises that the use of these powers in and of itself is unlikely to be sufficient to justify disclosure. The police are now directed to specifically factor in the behaviour of the detained person at the time, and how long they were detained. The Government’s position is that we cannot wholly rule out the possibility that there will continue to be circumstances in the future when a person’s behaviour is so extreme that it can safely be managed, at least initially, only in a police station. We are not legislating for some future point when that position will cease to be the case, which is what the amendment suggests.
I hope that, with all the things I have set out, and given our clear shared objective of doing what is in the best interests of all concerned, including their safety, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank those who supported my amendment. I was fascinated by the treatise of the noble Lord, Lord Rosser, on other aspects of Sections 135 and Section 136. He is, of course, absolutely right that there is no correlation at all between the use of police cells and the rurality or urbanisation of the area concerned: absolutely none. I have always known that Merseyside is a very special place—because that is where I come from—but apparently in Merseyside there are no “exceptional circumstances”, whereas there are in other places. I cannot understand the Government’s determination to insist that there will be exceptional circumstances in other places if there are none in Hertfordshire and Merseyside.
It is quite clear that the Government are not going to move on this. However, I have to say that I welcome, of course, what the noble Baroness said about regulations. We will have to keep a very careful eye on how these work and whether they achieve our joint objective of bringing the numbers down as low as possible. I very much hope that that is exactly what will happen over the next few years. The hour being what it is, I beg leave to withdraw the amendment.
Baroness Walmsley
“Child sexual exploitation: duty to refer
(1) Where the police have a reasonable belief that a child under the age of 18 has been a victim of a sexual offence or other forms of child abuse, the police must refer the child for a mental health assessment by an appropriately trained professional.(2) The Secretary of State must by regulations made by statutory instrument define the meaning of an “appropriately trained professional”.(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Baroness Walmsley
My Lords, Amendment 118 places a duty on police forces to refer children under 18 who are the victims of a sexual offence or other forms of child abuse for a mental health assessment by an appropriately trained professional. It mandates a currently poorly used referral pathway. I listened carefully to the Minister’s response in Committee and have changed the amendment that I bring forward today. I wish to stress that this amendment does not mean that all these children will need a CAMHS intervention or will have a diagnosable mental health condition. It is designed not only to support children who are the victims of these awful crimes but to inform commissioning decision-makers about the magnitude of the problem, so as to ensure that the right services are in place. We cannot rely on the numbers that reach the clinical threshold for intervention, because these thresholds are far too high, given the shortage of child and adolescent mental health services.
The amendment is deliberately not prescriptive as to who “an appropriately trained professional” would be, leaving this to regulations and local flexibility. This person could be a nurse, school councillor, trained social worker, councillor in a sexual assault referral centre or another appropriate local professional. The amendment strikes the right balance between local and national responsibilities. It introduces a national requirement for a referral pathway and assessment, but it does not set out the how and where, which will be up to local areas to determine. This is responsive to the level of need of these children and the evidence we have that they are not receiving the therapeutic support they need for their recovery.
As I said at the outset, the amendment would not mean that all victims of a sexual offence or other forms of child abuse would meet the clinical thresholds. Some may, but some may need other types of support—for example, school or community-based child sexual exploitation support groups, family support services, or support for parents and children to equip them to understand the emotional impact of abuse. The amendment would deliver the recommendation in Future in Mind, which the Government are committed to implementing in full, that,
“those who have been sexually abused and/or exploited receive a comprehensive assessment and referral to the services that they need, including specialist mental health services”.
The evidence for the amendment is compelling. In the past year the Children’s Society has calculated that more than 40,000 crimes of a sexual nature were reported against children. Each of these 40,000 is a child suffering the effects of horrific crimes, which come with a multitude of long-term effects that need to be addressed. We have only to read the recent media accounts of many footballers who were abused as children to understand the lifelong effects of these terrible experiences. They destroy lives and careers. Analysis by the Children’s Society of referral pathways for vulnerable groups found that less than half of mental health trusts identify children who have experienced sexual exploitation in referral and initial assessment forms. The NSPCC review of local transformation plans found that only one-third of these plans mentioned provision of services to meet the needs of these children. Yet while these figures are appalling, the experiences of the victims themselves show the need for the amendment even more.
Last week the noble Lord, Lord Kennedy, and I attended a meeting organised by the NSPCC and the Children’s Society and I want to share with noble Lords the account of Sarah—not her real name—who told her story. I record my thanks to her for sharing her experiences and her powerful message as to why this amendment is needed. Sarah was abused from a very young age by a member of her extended family and this had a long-term impact on her life. As her understanding of consensual relationships developed, Sarah realised that what she had experienced was abuse and as a teenager she suffered from clinical depression and was extremely suicidal. She was later referred to counselling and gradually came to terms with what had happened to her. The abuse had a long-term impact on her mental health, including eating disorders, drug abuse, PTSD and abusive relationships. At the meeting Sarah told us that the support she received was invaluable for her recovery. She thought that the amendment would support young people who had experienced sexual exploitation and help them recover more quickly by ensuring a direct referral from the police.
The amendment will also contribute to parity of physical and mental health. Recently, nine ex-Health Secretaries wrote to the Health Secretary to encourage the Government to,
“make good the promise to achieve genuine equality”,
between physical and mental health. Parity of esteem was enshrined in law by the Health and Social Care Act 2012, yet examples of this being enacted in policy are still rare. We know that nine out of 10 children who have experienced abuse at an early age will develop a mental illness by the time they are 18. Without assessment, how can we know which 10% will not need help? Issues faced include post-traumatic stress disorder, anxiety, self-harm, depression and, as we have heard, suicide attempts.
This is not a novel idea. There are numerous examples of where preventive public health initiatives have been set up in response to data on the prevalence of certain conditions affecting the physical health of a population. For example, cervical screening is now offered to all women over the age of 25. My first job out of university in the late 1960s was scanning the cervical smears of women with symptoms, so I know how effective screening is at picking up early cancer and pre-cancerous cells so that the patient can be treated early. The current rate of cervical cancer is 12 cases per 100,000 women—0.012%. Since its introduction, the screening programme has led to a decrease in the number of cervical cancer cases by about 7% each year, and it is estimated that up to 5,000 cases of cervical cancer are prevented annually because of cervical screening. That is a terrific record but the prevalence of cervical cancer is a great deal less than nine out of 10.
Viscount Hailsham
My Lords, I hope we do not go down this road. It seems a thoroughly bad idea. Of course there is a good case for voluntary provision. There may be many cases where assessment is highly desirable but this is coercive. It imposes an obligation on the police officer to do what is set out in the amendment.
Baroness Walmsley
I would like to make it clear that it would be only with the consent of the child, so it would be consensual as far as they were concerned.
Viscount Hailsham
That is not what it says in the amendment. Had it been so, I would not object, but we are talking about a piece of legislation, and it is coercive. If the police officer has to do it, presumably the child has to co-operate. You are not dealing just with young children, either. You are dealing with people up to the age of 18 and I would have thought that there were a substantial number of cases where the child would not want to be assessed and would find it pretty traumatic if he or she was. While there may be a strong case for putting in place a voluntary system for doing it, there is absolutely no case for making it coercive. I really hope that the House will not think of pursuing such a policy.
Baroness Walmsley
My Lords, I thank the noble Baroness, Lady Howe, and the noble Lord, Lord Kennedy, for their support. I reassure the noble Viscount, Lord Hailsham, that there is nothing coercive about this. I think there is a misunderstanding because a health issue is being debated in a criminal justice Bill. The reason there is no need to mention anything to do with consent in the amendment is that it is quite unnecessary. Any professional who would be doing the assessment has a professional duty to engage with any patient only with that patient’s consent. Indeed, it would be self-defeating even to try to do an assessment because it would not be effective, so it is totally unnecessary to mention consent in that situation. It is perfectly normal that consent is an absolute given in health issues among all health professionals.
I say to the noble Earl, Lord Attlee, that it is not inflexible either because it should not be for a policeman to decide whether a young person has been affected mentally by the situation. It is coercive if you count coercing the police to do the right thing and share the information, but it is not coercive in relation to the children. The police have to share the information, and it is then for the qualified person doing the assessment to decide what level of help—or no help at all—is needed by that child. That is perfectly straightforward and I see no reason why it should not be done.
The fact is that the police sometimes refer children for mental health assessments, but very rarely. Sometimes children go through a lot of barriers before they get to the assessment, and they disengage. They say, “I can’t do with having to tell my story over and over again to a whole series of people”. What should happen is a referral from a police officer directly to the people who can assess—with the child’s consent, of course—as their professional duty, whether that child needs any help at whatever level.
Clearly, I am not going to convince the Minister, but I should like to keep talking to her about this. Indeed, we have a meeting in the diary for next Monday about this very thing, so I would like to do that. Because of that, I beg leave to withdraw the amendment.
Baroness Walmsley
“Disallowing use of Tasers by police officers on psychiatric wards
(1) A police officer may not use a Taser or electroshock weapon during a deployment on a psychiatric ward save in exceptional circumstances.(2) Any use of a Taser or electroshock weapon on a psychiatric ward is required to be referred to the Independent Police Complaints Commission in such manner as the Commission specifies and not later than the end of the day following the day on which the Taser or electroshock weapon was used.(3) The Secretary of State may by regulations made by statutory instrument define “exceptional circumstances”.(4) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Baroness Walmsley
My Lords, this is another thing on which I did not succeed in convincing the Government in Committee, but I listened very carefully to what the Government said and have made some changes.
I had been seeking to ban the use of Tasers by police in psychiatric wards, but since the Government feel that their use may sometimes be necessary, my amendment asks the Government to specify very clearly in regulations the exceptional circumstances under which Tasers should be used. Bearing in mind that the use of such a weapon is a very serious issue and has sometimes led to the death of the person who has been tasered, my amendment asks that any use of such a weapon in a psychiatric ward should automatically be referred to the Independent Police Complaints Commission as a matter of course in just the same way as a death in custody is reported and investigated. By that means we would find out in considerable detail what led to such a severe intervention, and that information can be helpful to the police and mental health providers in improving the way they deal with people in great distress who may well have turned to some kind of violence or aggression. The hour is late, and that is all I wish to say. I beg to move.
Viscount Hailsham
My Lords, I agree with the noble Baroness that the hour is late, and therefore I shall be brief. I was here for the debate in Committee on this subject and I was wholly persuaded by the Minister about the undesirability of this amendment. I know full well that Tasers can be very injurious and I know that they are dangerous, but I also know from considerable personal experience that people in psychiatric wards can be extremely dangerous, volatile and violent.
I speak as somebody who was for some years Minister for the special hospitals. There were three mental hospitals in my constituency. I was the Minister for Police for a time and, relatively recently, I was on the monitoring board of a local prison. I know they are different, but in prisons you see many people who ought to be in psychiatric hospitals. The truth is that sometimes there is no choice: people get possession of a weapon and threaten their nurses or pose a very real threat to the other residents on the ward. What is a police officer to do if summoned and faced with a person with a knife? The truth is that in exceptional cases—which I will come to in a moment—a Taser may be necessary. I am certainly not going to go down the road of prohibiting that by statute.
What does “exceptional circumstances” actually mean? I can tell the noble Baroness: when there is a reasonably founded belief that it is necessary in self-defence or in defence of a third party. If I was the Secretary of State and put that into a statutory instrument, so what? Ultimately, it has to be decided by the court. If you look at this amendment and reflect on its consequences for one moment, the police officer is guilty of assault unless he can bring forward the defence. But who is responsible for bringing forward the defence? Does he have to prove that his acts fall within the exceptional circumstances or does the prosecution have to negate their existence? I suspect the latter, but it is extremely difficult for a police officer in those circumstances. It is a legal minefield and good news for lawyers—which is not something I am advocating in this case. It is a thoroughly bad amendment and I hope we hear no more of it.
Baroness Williams of Trafford
My Lords, this amendment brings us back to the use of Tasers. I am grateful to the noble Baroness, Lady Walmsley, for taking on board the points raised when we debated this issue in Committee and coming back with a revised amendment. My noble friends Lord Hailsham and Lord Attlee have given us a flavour of what we discussed then.
Any use of force by police officers in psychiatric wards on patients—or on any member of the public in any setting for that matter—must be appropriate, proportionate, necessary and conducted as safely as possible. When police officers need to attend and use force, they must be able to account for their actions. As the noble Lords, Lord Dear and Lord Rosser, and my noble friend Lord Hailsham indicated in Committee, a blanket ban on the use of Tasers in psychiatric wards would remove this valuable police tactic when they are dealing with potentially very violent situations.
Baroness Williams of Trafford
I do not usually take interventions on Report, although I will acquiesce to the noble Baroness because she did not speak for very long.
Baroness Williams of Trafford
I welcome the fact that the noble Baroness now accepts that there will be exceptional circumstances. My noble friend Lord Hailsham has very clearly outlined what exceptional circumstances would be, and I explained in Committee that it was when all other options for restraint had failed, particularly when the person has perhaps had to be kept at length from the police officer—in other words when going near the person would create a danger for other people.
The Taser was introduced to be used at that intermediate stage. It is to be used where de-escalation at the lower end has already been tried but has failed, and where the officer deems that other options—ranging from the use of lethal force, as my noble friend said, at the higher end—will not resolve the immediate threat in the safest and most proportionate way.
With regard to recording incidents, as the noble Baroness pointed out, each officer who deploys a Taser is required to complete a Taser evaluation form on every occasion where the device is used. The form should be completed prior to the end of each tour of duty, but in any case within 24 hours of the use. The police forces’ lead Taser officer is responsible for reviewing, collating and recording all Taser evaluation forms.
In Committee I explained that new police data were being collected on the use of force by officers, including force used in a hospital setting, to further improve the existing system of recording and reporting. Police forces are working to implement this new recording system and we expect data to be published as part of the Home Office’s annual data return in summer 2018 to ensure that the use of Tasers is absolutely transparent.
I put it to the noble Baroness that effective scrutiny of the use of Tasers is a better way forward than seeking to legislate. No officer will use a Taser lightly and will seek to argue that there were indeed exceptional circumstances. I have already pointed to the anomaly that this amendment would create in respect of the use of lethal force—no one wants to see that happen—if a safer tactic was unavailable. I hope the noble Baroness will feel happy to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply. Anyone hearing what has been said in the House tonight would think that I was asking for a ban on the use of Tasers. If noble Lords read my amendment carefully, they will realise that that is not what it would do. It accepts what the Government said in Committee, and during meetings that we had at the Home Office, that there may be exceptional circumstances. That is why I am no longer asking for a ban; I make that absolutely clear to noble Lords who have spoken.
However, it is a very serious matter for a police officer to use a Taser, as the Minister herself has said, in which case I think it would be helpful to the police if the Secretary of State were to specify clearly what is meant by “exceptional circumstances”. The noble Viscount, Lord Hailsham, has tried this evening to give a very simple account of what that means, and indeed the Minister has done the same. If it is that simple, why can it not be done? I think it would help the police.
I am aware that, following discussion in another place of an amendment similar to this one, a lot more information is now to be collected about the use of Tasers. I think that is a very good thing, and I look forward to seeing what we can learn from it. However, in this amendment I seek to be helpful to the police and to protect them by making very clear what they can and cannot do, and under what circumstances. But clearly the Government are not going to accept that, so I beg leave to withdraw the amendment.